ECPA Reform and the Revolution in Cloud Computing: Hearing Before the
Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the
H. Comm, on the Judiciary, 111th Cong. (Sept. 23,2010)....................25

John Nichols, Journalists Begin, Finally, To Stand Up in Defense of WikiLeaks and
Freedom of Information, The Nation: The Beat Blog, Dec. 14,2010,
http://www.thenation.eom/blog/l 57106/joumalists-begin-fmally-stand-defense-
wikileaks-and-freedom-information..............................................23

Marc A. Thiessen, Obama Administration Is Weak in the Face of WikiLeaks,

Real parties in interest Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir
(“Movants”) respectfully move the Court for an Order unsealing court records concerning
the United States government’s attempt to obtain information about their electronic
communications and publications. Specifically, Movants request the unsealing of: (1) all
orders and documents filed in this matter before the Court’s issuance of the December 14,
2010 Order requiring Twitter to provide information concerning Movants (the ‘Twitter
Order”); (2) all orders and documents filed in this matter after issuance of the Twitter
Order; (3) all similar judicial orders requiring entities other than Twitter to provide
information concerning Movants’ electronic communications and publications;1 and (4)
all documents filed in connection with such other orders or requests for such orders
(collectively, the “sealed documents”).

Movants request that all of the sealed documents be unsealed and made public as
quickly as possible, with only those redactions essential to protect information that the
Court determines, after independent review, to be properly withheld from public view.
Alternatively, Movants seek leave to view the sealed documents under an appropriate
protective order.

There is a presumption of access to judicial records like the sealed documents
under both the common law and the First Amendment. The government cannot meet its
heavy burden to overcome that presumption here for three reasons. First, because the
Court has previously determined that Movants and the public can be made aware of the

1 To the extent these other .orders and documents are filed under separate:docket numbers,
Movants respectfully request that a copy of this motion be filed in the correct docket(s).

underlying investigation and the Twitter Order, no legitimate government interest, let
alone a compelling interest, is served by continued sealing of the materials.

Second, Movants have an interest in learning about the government’s attempts to
obtain their records so that they can take steps to protect their constitutional rights.

Although that interest could be overcome in some contexts, it cannot be overcome here.
Movants have challenged the Twitter Order in a motion filed herewith, and intend to
challenge any similar orders, warrants, or subpoenas to other companies (collectively,

“§ 2703 orders”). Absent disclosure of the sealed documents, Movants will not be able to
challenge these other § 2703 orders, and their ability to challenge the Twitter Order will
be significantly curtailed.

Finally, these sealed materials are of immense public interest to the ongoing
debate about the legality of WikiLeaks’ publication of previously unpublished
information concerning the U.S. government’s activities, and their disclosure would
significantly serve the public interest. Unsealing the documents would also increase the
public’s ability to participate meaningfully in a separate, but equally important, debate
about the proper balance in the digital age between the right to privacy and law
enforcement needs.

The Court has already held that unsealing the Twitter Order was “in the best
interest” of the government’s investigation. In these circumstances, both the common
law and First Amendment right of access to judicial records mandate that these
documents be unsealed.

Birgitta Jonsdottir is an elected Member of the Parliament of Iceland, representing
the Reykjavik South Constituency. Ms. Jonsdottir was elected in 2009 to serve a four-
year term, ending in 2013. Ms. Jonsdottir uses Twitter.com (“Twitter”) as a method for
communicating to her constituency and to publish her thoughts and links to information
she has seen on the Internet to individuals around the world interested in her views and
her political and professional activities. She used Twitter as part of her political
campaign for Parliament and, since her election, has used it to publish “tweets” about her
political positions, activities, and work as a Member of Parliament. She has published
over 1,000 tweets since November 2009. She has written the majority of those messages
in Icelandic, with the remainder in English.

Jacob Appelbaum is a computer security researcher and photographer who is a
U.S. citizen. Mr. Appelbaum is well known in the U.S. and abroad as an expert in
computer and telecommunications security, especially because of his work with the “Tor”
project developing encryption software that allows individuals, businesses, activists, the
media, law enforcement, and the U.S. military to protect their privacy and security on the
Internet. Mr. Appelbaum regularly uses Twitter to post public messages through his
Twitter account, “ioerror.” As of January 25,2010, public Twitter records show that Mr.
Appelbaum has posted 7,920 Tweets and has 10,757 followers. Mr. Appelbaum's tweets
cover numerous topics, including Internet censorship, human rights issues, Internet
security, and other commentaries on political and social issues in the U.S. and abroad.

Rop Gonggrijp is a Dutch activist and businessman. He is the founder or co-
founder of several companies, including XS4ALL, the Netherlands’ first public Internet
service provider; ITSX, a computer security evaluation company; and Cryptophone, a
company that produces mobile telephones with end-to-end encryption. Mr. Gonggrijp is
well known in the Netherlands and abroad as an expert in computer and
telecommunications security. He has regularly been an expert witness in court, and is a
guest lecturer on the Information Revolution and its political impact. Mr. Gonggrijp uses
Twitter to post public messages through his blog, http://rop.gonggri.jp/.

Although Movants are unrelated individuals, with different perspectives and
stories, they file this motion together in the interest of judicial economy, because each of
them is concerned about the government’s efforts to obtain private, protected information
about their and other individuals’ communications, and because each of them believes
that this invasive governmental action, if permitted at all, must be undertaken
transparently.

II. TWITTER.

Twitter is an online micropublishing tool that permits individuals to communicate
with an infinite number of other people around the world, on whatever subject the
“tweeter” desires, in messages of 140 characters or less. Twitter is one of the fastest
growing forms of communication in the world, with over 175 million reported registered
users as of September 2010 — including individuals, corporations, governmental entities,
and elected officials. By some estimates it is the eleventh largest website in the world.2

Twitter has been an especially vital form of communication for individuals who either do
not have means of access to more traditional media or who live in repressive societies
where freedom of speech is not protected, most recently in Iran and Tunisia.

To publish material on Twitter, an individual needs to sign up for a Twitter
account. Once that account is opened, a subscriber can publish messages using the
account (“tweets”), sign up to receive others’ tweets (those one is “following”), and have
others follow his or her tweets (one’s “followers”). All tweets are publicly accessible.4
In addition to a tweet’s content, the time and date of each tweet also appears publicly; the
location from where the tweet was made is not publicly available. In addition to public
tweets, Twitter users may also use Twitter to communicate privately with other Twitter
users via direct messages (“DMs”). All information regarding those DMs, including their
content, their sender and recipient, and their time and date, is private and not publicly
available.

As with other forms of Internet communications, what individuals say on Twitter,
and when and where they use Twitter, can potentially reveal information about their
thoughts, beliefs, associations, and actions. Twitter thus enables any individual to
“become a town crier with a voice that resonates farther than it could from any soapbox,”

http://www.pewintemet.Org/~/media//Files/Reports/2009/PIP_Twitter_Fall_2009web.pdf
(19% of Internet users use Twitter or a similar service as of October 2009, up from 1.1%
in April 2009 and 6% in August 2008).

3 Ethan Zuckerman, The First Twitter Revolution?, Foreign Policy, January 14, 2011,
available at http://www.foreignpolicy.com/articles/

201 l/01/14/the_first_twitter_revolution?page=full; see also Brad Stone & Noam Cohen,
Social Networks Spread Defiance Online, N.Y. Times, June 16,2009, at A11, available
at http://www.nytimes.com/2009/06/16/world/middleeast/16media.html (discussing use
. of Twitter by Iranian dissidents). ... .

•4 Twitter has a “protect” feature that' allows a subscriber to- make tweets available only to
chosen individuals, but that feature is not at issue here.

Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997), and continues the role
of the Internet as “the most participatory form of mass speech yet developed.” Id. at 863.

III. THE DECEMBER 14,2010 ORDER TO TWITTER.

In response to an Application by the United States, the Court issued an Order on
December 14,2010 that requires Twitter to disclose information concerning the accounts
of several of its subscribers, including Movants (the “Twitter Order”). See Twitter Order,
attached as Ex. A to the Declaration of Aden J. Fine (“Fine Decl”), filed herewith. The
Twitter Order demands, among other things, information concerning four Twitter
accounts: @wikileaks, @ioerror, @birgittaj, and @rop_g. Movants are the holders of
the last three accounts. Among other things, the Order requires Twitter to disclose
Movants’ (1) personal contact information (“mailing addresses, residential addresses,
business addresses, e-mail addresses, and other contact information”), (2) financial data
(“means and source of payment for such service (including any credit card or bank
account number) and billing records”), (3) account activity information (“records of user
activity for any connections made to or from the Account, including the date, time,
length, and method of connections, data transfer volume, user name, and source and
destination Internet Protocol address(es)”),s and (4) DM information (“non-content
information associated with the contents of any communication or file stored by or for the
account(s), such as the source and destination email addresses and IP addresses”). See
Twitter Order, Attachment A. The Order covers all activity on the accounts, apparently * •

including DMs, regardless of subject matter, for the time period from November 1,2009
to the present.

As a result of negotiations between Twitter and the government, to reduce the
burden on Twitter and to recognize that Twitter does not have certain of the requested
information, Movants understand that the government is presently restricting the time
period of its request to November 15,2009-June 1,2010, and that the scope of the
information sought has been limited to contact information for the four account holders,
the IP addresses used each time Movants logged into their accounts, and information
regarding DMs between the four Twitter accounts named in the Order.6

The Twitter Order was issued pursuant to 18 U.S.C. § 2703(d), which is part of
the Stored Communications Act (“SCA”). See Twitter Order. The SCA governs access
to the contents of “wire or electronic communications” that are in “electronic storage in
an electronic communications system” or that are “in a remote computing service.” 18
U.S.C. § 2703(a)-(b). It also governs access to “record[s] or other information pertaining
to a subscriber to or customer of’ an “electronic communication service or remote
computing service.” Id. § 2703(c). Content that has been stored in an electronic
communications system for more than 180 days, content stored in a remote computing
service, or any “records or other information,” may be obtained with a warrant,
administrative subpoena, or § 2703(d) court order. Id. § 2703(a)-(b), (d). To obtain a
§ 2703(d) order, the government must offer “specific and articulable facts showing that

The government has not conceded that its original Order was improper in any manner.
Nor has the government agreed never to ask for the full scope of the originally demanded
information. As a result, Moyants’ challenge to the Twitter-Order need not be limited to
the narrowed demand. •

there are reasonable grounds to believe” that the information or records sought are both
“relevant and material to an ongoing criminal investigation.” Id. § 2703(d).

The SCA does not contain a provision permitting the sealing of orders issued
pursuant to its terms. Prior notice to the affected subscriber, however, is not statutorily
required if the government uses a warrant or only seeks disclosure of “a record or other
information pertaining to a subscriber to or customer of [an electronic communication or
remote computing] service.” Id. § 2703(c).7 Where the government is not required to
provide notice or is entitled to delay notice, the government may also obtain a court order
commanding the communications provider not to notify anyone of the existence of the
warrant, subpoena, or court order “for such period as the court deems appropriate,”
provided that the court determines that notification “will result in” a specifically defined
adverse result. Id. § 2705(b).

Despite the lack of statutory authority, the Twitter Order and all related
documents were apparently filed under seal. Additionally, the Order prohibited Twitter
from disclosing it to anyone, presumably pursuant to a finding under § 2705(b).

Twitter’s policy is “to notify users of requests for their information prior to disclosure
unless we are prohibited from doing so by statute or court order.” Twitter, Twitter Help
Center - Guidelines for Law Enforcement, http://support.twitter.com/entries/41949-
guidelines-for-law-enforcement (last visited Jan. 25,2011). Although there is not
presently a public record about what happened after Twitter received notice of the

7 Prior notice must be provided when a court order or administrative subpoena is used to
obtain the “contents of any wire or electronic communication.” Id. § 2703(b). In such
circumstances, the government may seek an order delaying such notification for a period
■ of up . to ninety days when notification “may have” a specifically defined “adverse result.”

Twitter Order, the Court entered an Order on January 5,2011 unsealing the Twitter Order
(the “Unsealing Order”).8 See Unsealing Order, attached as Ex. B to Fine Decl.
According to the Unsealing Order, “it is in the best interest of the investigation to unseal
the Court’s Order of December 14,2010 and authorize Twitter to disclose that Order to
its subscribers and customers.” See Unsealing Order.

On January 7,2011, following issuance of the Unsealing Order, Twitter sent the
Twitter Order to Movants, along with emails informing Movants that Twitter would be
forced to comply with the Order unless Movants took appropriate legal actions. See, e.g.,
Ex. C to Fine Decl. The disclosure of the Twitter Order was front-page news around the
world.9 Widespread interest has focused on whether similar orders have been issued to
other companies concerning Movants and the other targeted individuals.10 * Several other
companies believed to have received similar orders have refused to comment on the
matter, increasing the belief that such orders exist.11

Movants now bring this motion to unseal this docket and any other § 2703 orders
to other companies regarding Movants to permit Movants to obtain the information

8 .,

The Unsealing Order does not indicate whether the Court issued the Unsealing Order
sua sponte or in response to a motion or oral request. It also does not reveal the original
justification for sealing the Twitter Order.

necessary to protect their constitutional rights, and to enlighten the public about the
government’s investigation of WikiLeaks and the government’s use of its electronic
surveillance authorities to monitor individuals’ Internet communications.

ARGUMENT

I. THE UNSEALING OF THE TWITTER ORDER REMOVES THE
JUSTIFICATION FOR CONTINUED SEALING OF THE SEALED
DOCUMENTS.

Courts have recognized that the government may frequently have a legitimate
interest in maintaining the secrecy of an ongoing criminal investigation and in avoiding
tipping off potential witnesses that they are being investigated. That rationale for sealing
is absent here. First, the unsealing of the Twitter Order, which appears to have been done
with the government’s approval, confirms the existence of the underlying criminal
investigation. Second, the unsealing of the Twitter Order makes clear that the
government is seeking information about Movants. As a result, there is no risk that
unsealing other § 2703 orders to Movants’ other service providers would seriously
jeopardize the investigation or tip off witnesses. Now that the Court has unsealed the
Order to Twitter, there can be no legitimate justification, let alone a compelling interest,
for keeping all of these documents under seal. See, e.g., United States v. Klepfer (In re
The Herald Co.), 734 F.2d 93, 101 (2d Cir. 1984) (closure impermissible where the
information “sought to be kept confidential has already been given sufficient public
exposure”); United States v. James, 663 F. Supp. 2d 1018, 1020-21 (W.D. Wash. 2009)
(unsealing documents in criminal case with only narrow redactions because the
information was already publicly available).

At a minimum, given the Court’s ruling that disclosing the Twitter Order is “in
the best interest of the investigation,” the government should be required to come forward
with compelling evidence that continued sealing of any other § 2703 orders, as well as
the other Twitter-related documents, is justified. Even if the government can assert some
interest in maintaining secrecy of the sealed documents, that interest must be balanced
against the interests of the Parties, see below, and the public, infra at 14-28.

II. MOVANTS NEED THESE DOCUMENTS UNSEALED SO THAT THEY

CAN PROTECT THEIR FUNDAMENTAL RIGHTS.

Movants have a strong interest in learning whether their private communications
are being monitored so that they can mount constitutional and statutory challenges to the
government’s efforts. Movants have concurrently filed a motion to vacate the Twitter
Order, and they intend to protect their fundamental rights by challenging any other
§ 2703 orders directed at their communications. They will, however, be unable to do so
if the other government requests for information about their past speech activities remain
hidden. They will also be hindered in challenging the Twitter Order if they are prevented
from learning the legal arguments and non-confidential facts that the government has
articulated as a basis for seeking this information.

Movant’s constitutional rights are implicated by the government’s demand for
information. Like many members of the public, Movants routinely use the Internet for
self-expression, publication, association, and communication. They, like many people,
have multiple electronic communications accounts, with various technology companies,
that offer opportunities to communicate with others, both individually and en masse.

example, the Twitter Order requires Twitter to provide the government with information
regarding the identity of anyone with whom Movants have sent or received private DMs,
including those individuals’ email addresses and their IP addresses. The Order also
compels the disclosure of information about every time Movants have logged on to their
Twitter accounts during a lengthy time period, including the date, time, and duration of
each visit, regardless of whether such log-ins had any relationship to WikiLeaks. The
Order would also require identification of every IP address used by Movants while they
were accessing and using their Twitter accounts, which could be used to determine
Movants’ geographical location at all such times, again without regard for the subject
matter or nature of their activities at the time.12

This detailed information about Movants’ communications is private; combining
that information with Movants’ records from their other private communications accounts
will provide an even deeper and more invasive glimpse into their daily thoughts,
associations, and activities, implicating Movants’ constitutional rights. Based on the
existence of the Twitter Order, Movants reasonably believe that the government has
sought information about their communications from other providers of electronic
communication services or remote computing services, and that these § 2703 orders and
related documents remain under seal.13

12 ' ' • ;

That Twitter does not have some of this information or that it was able to convince the

government that production here would be burdensome is of no matter. The government
has not withdrawn its original demand, and other services receiving § 2703 orders may
have such data and may not have argued that production was burdensome.

These documents should therefore be unsealed to provide Movants with the
ability to challenge the government’s attempt to obtain this private information about
their communications. Where, as here, a subpoena or ex parte court order to a third party
implicates an individual’s First Amendment rights, that individual (the “target” of the
request) has the right to challenge the government request. In Eastland v. U.S.

Servicemen's Fund, 421 U.S. 491 (1975), for instance, the Supreme Court held that
individuals whose First Amendment records are subpoenaed from a third party can bring
an immediate action challenging the subpoena because otherwise their constitutional
rights might permanently be frustrated. Id. at 501 & n.14; see also id. at 514 (Marshall,

J., concurring) (emphasizing that the target must be given a forum to “assert its
constitutional objections to the subpoena, since a neutral third party could not be
expected to resist the subpoena by placing itself in contempt”); Pollard v. Roberts, 283 F.
Supp. 248,258-59 (E.D. Ark. 1968) (three-judge court), aff’dper curiam, 393 U.S. 14
(1968) (considering targets’ challenge to subpoenas directed at third-party bank and
enjoining subpoenas on grounds that enforcement would violate targets’ First
Amendment rights of association);14 Grandbouche v. United States (In re First Nat’l
Bank), 701 F.2d 115,117-19 (10th Cir. 1983) (holding that targets had standing to
challenge third-party records subpoena and remanding for evidentiary hearing on targets’
claims that government’s compulsion of information from bank would violate targets’

First Amendment right of association); Local 1814, Int 7 Longshoremen’s Ass 71, AFL-

http://www.salon.com/news/opinion/glenn_greenwald/2011/01/07/twitter (“It’s difficult
to imagine why the DOJ would want information only from Twitter....”).

A summary affirmance by the Supreme Court operates as a judgment on the merits and
“prevent[s] lower courts, from coming to opposite conclusions on the precise issues .
presented and necessarily decided by those actions.” See; e.g:, Mandel v Bradley 432
U.S. 173, 1.76(1977). . ' ’

CIO v. Waterfront Comm ’n ofN.Y. Harbor, 667 F.2d 267,271,274 (2d Cir. 1981)
(permitting targets’ challenge to third-party subpoena and upholding district court’s
decision to narrow subpoena to limit impairment of targets’ First Amendment rights of
association). Because continued sealing of the § 2703 orders and applications would
frustrate Movants’ ability to exercise their right to mount First Amendment challenges to
the § 2703 orders, the sealed documents should be unsealed.

III.

BOTH THE COMMON LAW AND THE FIRST AMENDMENT SUPPORT
A RIGHT OF ACCESS TO THE SEALED DOCUMENTS.

In addition to Movants’ personal interest in having the sealed documents
disclosed to them, there is also a strong public interest, shared by Movants, in having the
documents unsealed. That the judicial process should be as open to the public as possible
is a principle enshrined in both the common law and the Constitution. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Nixon v. Warner Commc’ns, Inc., 435
U S- 589 (1978). Although § 2703 orders may implicate novel technologies and legal
processes, the law of access to judicial records is well established. Even if the

government possessed some conceivable argument for continued closure, it cannot
demonstrate that its interest is sufficient to overcome either the common law or First
Amendment right of access to the sealed documents.15

15 Movants have standing to assert the public’s right of access to the sealed documents.
,fer,eUCaZia’Inc- v> APPliedExtrusion Techs., Inc., 998 F.2d 157, 167-68 (3d Cir 1993)
(holding that ‘“the applicability and importance of the interests favoring public access are
not lessened because they are asserted by a private party to advance its own interests in
pursuing its lawsuits against a party to the original action,”’ and noting that, “[tlhe
Supreme Court has made it plain that all persons seeking to inspect and copy judicial
records stand on an equal footing, regardless of their motive for inspecting such records”
(alterations and citation omitted)).

A. The Common Law Right Of Access Attaches To § 2703 Orders And
Applications.

Courts have long recognized the public’s right of access to court documents. See,
e.g., Nixon, 435 U.S. at 597 (“[T]he courts of this country recognize a general right to
inspect and copy public records and documents, including judicial records and
documents. ). The law’s recognition of the importance of judicial transparency serves
“the citizen’s desire to keep a watchful eye on the workings of public agencies... [and]
the operation of government.” Id. at 598. As the Fourth Circuit has explained: “The
value of openness in judicial proceedings can hardly be overestimated. ‘The political
branches of government claim legitimacy by election, judges by reason. Any step that
withdraws an element of the judicial process from public view makes the ensuing
decision look more like fiat, which requires compelling justification.’” United States v.
Moussaoui, 65 F. App’x 881, 885 (4th Cir. 2003) (quoting Union Oil Co. v. Leavell, 220
F.3d 562,568 (7th Cir. 2000)).

The Fourth Circuit has specifically noted that the public’s interest in access “may

be magnified” “[i]n the context of the criminal justice system”:

Society has an understandable interest not only in the administration of criminal
trials, but also in law enforcement systems and how well they work. The public
has legitimate concerns about methods and techniques of police investigation: for
example, whether they are outmoded or effective, and whether they are
unnecessarily brutal or instead cognizant of suspects’ rights. .

Section 2703 orders indisputably qualify as judicial records subject to the right of
access. Because the judiciary’s very legitimacy stems from its issuance of reasoned
decisions, documents authored or generated by a court, such as court orders, are core
judicial records. See, e.g., United States v. Mentzos, 462 F.3d 830, 843 n.4 (8th Cir.

2007) (“requiring a judge’s rulings to be made in public deters partiality and bias_In

short, justice must not only be done, it must be seen to be done”). As the written record
of the exercise of judicial power under the SCA, § 2703 orders constitute judicial records,
subject to the right of access.

The right of access to judicial records applies not only to documents generated by
a court, but also to materials filed by litigants upon which the court relies in performing
its adjudicatory functions. See, e.g., Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63-64 (4th
Cir. 1989) (holding that search warrant affidavits are judicial records to which a common
law right of access attaches); Stone v. Univ. ofMd. Med. Sys. Corp., 855 F.2d 178,180-
SI (4th Cir. 1988) (including documents filed by litigants in the court record as among
the “judicial records and documents” to which the common law presumption of.access

attaches); In re Search Warrant for Secretarial Area Outside the Office of Thomas Gunn,

855 F.2d 569,573 (8th Cir. 1988) (holding that search warrant applications and receipts
qualify as “judicial records” subject to the right of access).

Section 2703 applications and related documents fall well within this criterion. A
government entity seeking authorization to conduct electronic surveillance under the
SCA must file an application with a court. The court must then carefully review the
application to determine whether the statutory criteria have been satisfied before issuing
an order. See 18 U.S.C. § 2703(d). As documents filed with, reviewed, and relied upon
by courts in adjudicating whether to grant a § 2703 order, applications for such orders are
judicial records subject to the public’s right of access.

This common law right of access has not been superseded by statute. The Stored
Communications Act does not contain a provision authorizing the sealing of § 2703
orders or related documents. The absence of a sealing provision in the SCA is not a mere
accident or oversight. The Pen/Trap Statute, which parallels the SCA in several ways and
was enacted alongside the SCA as Title III of ECPA (the SCA is Title II), specifically
requires that an order issued under its provisions “be sealed until otherwise ordered by
the court.” 18 U.S.C. § 3123(d)(1). Similarly, the Wiretap Act, a surveillance statute that
predates ECPA, also expressly provides that “Applications made and orders granted
under this chapter shall be sealed by the judge.” 18 U.S.C. § 2518(8)(b). The absence of
a similar provision in the SCA makes clear that there is no statutory basis for sealing an
application or order under the SCA that would overcome the common law right here. See
Keene Corp. v. United States, 508 U.S. 200,208 (1993) (“[Wjhere Congress includes
particular language in one section of a statute but omits it in another..., it is generally .

presumed that Congress acts intentionally and purposely in the disparate inclusion or
exclusion”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).16

B. The First Amendment Right Of Access Attaches To § 2703 Orders
And Applications.

Although the principles animating the First Amendment and common law rights
of access are similar, courts have articulated a distinct First Amendment right of access to
judicial records. “The first amendment guarantees the press and the public a general right
of access to court proceedings and court documents unless there are compelling reasons
demonstrating why it cannot be observed.” Wash. Post v. Robinson, 935 F.2d 282,287
(D.C. Cir. 1991). “The first amendment right of access is, in part, founded on the societal
interests in public awareness of, and its understanding and confidence in, the judicial
system.” United States v. Chagra, 701 F.2d 354,363 (5th Cir. 1983) (internal citation
omitted). This First Amendment right encompasses not only the right to attend trial and
pretrial proceedings, but also the right to inspect documents filed in the course of civil
and criminal proceedings. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249,

253 (4th Cir. 1988) (holding that there is a First Amendment right of access to documents
submitted in civil proceedings); United States v. Soussoudis (In re Wash. Post Co.), 807
F.2d 383,390 (4th Cir. 1986) (holding that there is a First Amendment right of access to
documents filed in criminal proceedings).

. This First Amendment right applies to the sealed documents in this case..

Although an established history of closure may limit the availability of the First

16

18 U.S.C. § 2705(b), which authorizes courts to prohibit a recipient of a § 2703 order
from notifying anyone of its existence when there is reason to believe disclosure “will
result in” “seriously jeopardizing an investigation,” does not provide a basis for sealing.
Moreover, that justification is not present here. •

(Press-Enterprise II) (establishing an “experience” and “logic” analysis for determining
if a First Amendment right of access exists), a lack of historical openness does not mean
that there is no First Amendment right to the sealed documents where the type of
document or process at issue is new. Any such rule would artificially limit the right of
access to documents and processes that existed in an earlier era. See, e.g., United States
v. Gonzales, 150 F.3d 1246,1258 (10th Cir. 1998) (concluding that there is “no history,
experience, or tradition of access” to documents “regarding requests for CJA assistance,”
but turning to the “logic prong because the procedure here is relatively new”); United
States v. Simone, 14 F.3d 833, 838 (3d Cir. 1994) (focusing on the logic prong after
concluding that the experience prong is not relevant where there is no history of either
openness or closure); Seattle Times Co. v. U.S. Dist. Ct., 845 F.2d 1513,1516 (9th Cir.
1988) (concluding that a mixed history of public access to pretrial detention proceedings
should not foreclose a right of access because such proceedings “have grown increasingly
important in the modem era” (internal citation omitted)); Chagra, 701 F.2d at 363
(“Because the first amendment must be interpreted in the context of current values and
conditions, the lack of an historic tradition of open bail reduction hearings does not bar
our recognizing a right of access to such hearings.” (internal citation omitted)).

The Fourth Circuit has held that there is no First Amendment right to search
warrant affidavits because of the long history of sealing such proceedings. Baltimore
Sun, 886 F.2d at 64-65.17 That holding does not, however, mean that there is no First

17 Although it finds that therejis no First Amendment right to search warrant affidavits,.

: . Baltimore Sun makes dear that-there is a common.laW right of access to the affidavits *

Amendment right to the § 2703 orders and other documents at issue here, with the
exception of any § 2703 search warrant affidavits. Unlike with search warrant affidavits,
the “common sense reason” on which the Supreme Court (and the Fourth Circuit) relied
for keeping search warrant proceedings closed—to avoid tipping off the target of the
search until after the warrant was executed “lest he destroy or remove the evidence”—is
not applicable here because the existence of the investigation is already public. See id. at
64 (quotingFranks v. Delaware, 438 U.S. 154, 169 (1978)). In addition, unlike search
warrant proceedings, there is not a centuries-long, established tradition of closure with
regard to the relatively new process of § 2703 proceedings. Indeed, in some
circumstances, § 2703 orders are not secret at all; search warrant proceedings, by
contrast, are consistently conducted in secret. Moreover, unlike with search warrants,
because § 2703 orders are issued only to third parties for records under the third party’s
control, there is little fear that tipping off the search’s target will lead to the destruction or
removal of evidence.

Where, as here, there is not a meaningful history upon which to draw, courts have
focused on the Supreme Court’s “logic” prong to determine if there is a First Amendment
right of access. Press-Enterprise II, 478 U.S. at 11 n.3 (1986) (noting that the First
Amendment right attached to certain pretrial proceedings even when they had “no
historical counterpart,” where the “importance of the ... proceeding” was clear). The
focus of the logic prong is whether public access to § 2703(d) orders and applications
plays a “significant positive role in the functioning of the particular process in
question”—here, the judicial determination of whether to grant a § 2703 application. See
Press-Enterprise II, 478 U.S. at 8-9. This .assessment as to whether there should be such

access is made “in the context of current values and conditions.” Chagra, 701 F.2d at
363.

As explained in more detail below, unsealing the § 2703 orders and applications
in this case would have a significant positive role in promoting public understanding and
discourse regarding the government’s legal actions toward WikiLeaks and the nature and
scope of the government’s use of its electronic surveillance authorities to obtain sensitive
personal information. That § 2703 applications are submitted and orders are granted
outside the normal adversarial process only heightens the need for the public to have
access to these documents to evaluate the work of prosecutors and judges. See Press-
Enterprise II, 478 U.S. at 12-13 (“[T]he absence of a jury, long recognized as an
inestimable safeguard against the corrupt or overzealous prosecutor and against the
compliant, biased, or eccentric judge, makes the importance of public access ... even
more significant.” (internal quotation marks and citation omitted)); FTC v. Standard Fin.
Mgmt. Corp., 830 F.2d 404,410 (1st Cir. 1987) (“The appropriateness of making court
files accessible is accentuated in cases where the government is a party: in such
circumstances, the public’s right to know what the executive branch is about coalesces
with the concomitant right of the citizenry to appraise the judicial branch.”). In short, for
many of the same reasons that there is a common law right of access to § 2703 orders and
applications, there is a First Amendment right of access as well.

C. The Government Cannot Meet Its Burden To Overcome The
Presumption Of Access To The Sealed Documents.

The common law right of access establishes a presumption in favor of access to
judicial records and documents. See Nixon, 435 U.S. at 602. Once the presumption
attaches, a court cannot seal documents or. records indefinitely without considering .

countervailing factors. The government bears the burden of‘“showing some significant
interest that outweighs the presumption’” of access, and, to rebut the presumption, must
demonstrate that ‘“countervailing interests heavily outweigh the public interests in
access.”’ Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004)

(quoting Rushford, 846 F.2d at 253).

Similarly, where, as here, judicial records implicate the First Amendment right of

access, an even higher presumption of openness attaches. “The presumption of openness

I

may be overcome only by an overriding interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve that interest.” Press-
Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501, 510 (1984) {Press-Enterprise I); see
also Va. Dep 7 of State Police, 386 F.3d at 575 (“a district court may restrict access only
on the basis of a compelling governmental interest, and only if the denial is narrowly
tailored to serve that interest” (internal quotation marks and citation omitted)).

“Regardless of whether the right of access arises from the First Amendment or the
common law, it ‘may be abrogated only in unusual circumstances.’” Va. Dep 7 of State
Police, 386 F.3d at 576 (quoting Stone, 855 F.2d at 182). Given that the Twitter Order
has been unsealed, the government cannot meet its burden of establishing an interest in
continued secrecy sufficient to “heavily outweigh” Movants’ and the public’s significant
interest in access to these related records, let alone an “overriding,” “compelling” interest
necessary to withstand First Amendment scrutiny.

In addition to Movants’ interest in obtaining access so that they can challenge the

Twitter Order and any other § 2703 orders, see supra at 11-14, there is a significant

(

public interest in unsealing, thejse documents. The government’s investigation of

WikiLeaks has sparked an intense debate within this country and abroad about
government secrecy, the government’s efforts to protect classified information, the
relationship between that activity and the First Amendment, and whether the United
States can continue to honor our traditional freedoms and protect our safety at the same
time.18 Because of its importance, Congress has held a hearing on the topic, bills have
been introduced to address the situation, and the Executive Branch is reconsidering its
information security procedures.19 Even President Obama has contributed his views on
the subject.20

Unsealing the sealed documents would contribute greatly to the public’s,
including Movants’, ability to participate meaningfully in this ongoing debate.
Documents related to the legal actions that the government has already undertaken—and
the courts’ reactions to such actions—will provide an as yet unseen perspective on this
matter. The public has a right to know about legal steps that the government is taking to

address this matter of intense national concern and how the courts are responding when,

as here, there is not an overriding need for secrecy, and disclosure of the sealed

!

documents would enable the public to evaluate the decisions of their elected officials and
to reach their own determinations about the appropriateness of the government’s actions.

In addition to the significant public interest in the subject matter of this particular
investigation, the public also has a substantial interest in knowing more about the
government’s increasing electronic surveillance of lawful Internet activities. The Internet
is the premier mode of long-distance communication today, and an increasing percentage
of personal and business activities are conducted online each year.21 Recent
developments in Internet technology, such as the creation of Twitter and Facebook, along
with the advent of powerful portable computers, smart phones, cellular-based internet,
and ubiquitous wi-fi connections, have resulted in an ever-increasing amount of personal
data being stored online and, thereby, potentially available to law enforcement.22

Despite these dramatic technological developments, the law governing the
government s ability to obtain information concerning electronic communications, the
Electronic Communications Privacy Act of 1986 (“ECPA”), Pub. L. No. 99-508,100
Stat. 1848 (1986), of which the SC A is Title II, has not been changed in the past twenty-
five years. Congress is now considering doing so.23 To be able to consider intelligently

21

See Pew Internet & American Life Project, Online Activities, 2000-2009,

how to strike the balance between civil liberties and law enforcement in the digital age,
the public and Congress need to know as much as possible about how the government is
using its surveillance authorities to monitor individuals’ Internet communications.

Because the Twitter Order has been unsealed and Movants have now been provided
notice and an opportunity to challenge the government’s actions, this case presents the
rare and valuable opportunity for the public to learn more about the nature and scope of
the government s use of these electronic surveillance orders. Thus, even if this were not
a case where the specific subject matter of these documents is of serious public concern,
there would still be a significant public benefit in unsealing the documents. See United
States v. U.S. Dist. Ct. (Keith), 407 U.S. 297,317 (1972) (“[Tjhose charged with [the]
investigative and prosecutorial duty should not be the sole judges of when to utilize
constitutionally sensitive means in pursuing their tasks.”).

Openness is especially critical here because the public has a “magnified” interest
injudicial records relating to law enforcement processes and the criminal justice system.

In re Application & Affidavit for a Search Warrant, 923 F.2d at 330-31 (“Society has an
understandable interest not only in the administration of criminal trials, but also in law
enforcement systems and how well they work.”); see also Press-Enterprise I, 464 U.S. at
508 (“Openness thus enhances both the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the system.”).

As discussed earlier, given the unsealing of the Twitter Order, the government’s '
investigation of WikiLeaks is not secret and cannot justify continued closure. As a result,
the government may instead argue that there is a general need for secrecy concerning

Hearing Before the Subcomm: on the- Constitution, Civil Rights, and Civil Liberties of the
H. Comm, on the Judiciary, ) 11th Cong. (Sept. 23, 2010).

ongoing criminal investigations and law enforcement methods which warrants keeping
the documents under seal. A general appeal to secrecy, however, cannot overcome the
right of access; instead, a specific, narrowly tailored need for sealing must be
demonstrated. See Va. Dep’t of State Police, 386 F.3d at 579 (holding that because not
every release of information contained in an ongoing criminal investigation file will
necessarily affect the integrity of the investigation,” “it is not enough simply to assert” a
compelling government interest in the integrity of the investigation “without providing
specific underlying reasons for the district court to understand how the integrity of the
investigation reasonably could be affected by the release of such information”);

Baltimore Sun, 886 F.2d at 65-66 (requiring that the sealing of search warrant affidavits
be justified by more than just the conclusion that “the public interest in the investigation
of crime” outweighs the media’s interest in access).

Any legitimate government interests that exist can be accommodated through
redactions or continued sealing on a document-by-document basis. Because the right to
access is such a fundamental right, courts must first “consider less drastic alternatives to
sealing,” and may not seal documents completely or hide the very existence of a docket if
it is possible to accommodate the government’s interests by redacting specific
information. Stone, 855 F.2d at 181; see also Baltimore Sun, 886 F.2d at 66 (requiring
that the judicial officer consider alternatives to sealing documents, such as “disclosing
some of the documents or giving access to a redacted version”); Moussaoui, 65 F. App’x
at 889 (“[Sjealing an entire document is inappropriate when selective redaction will
adequately protect the interests involved”). In addition, before any motion to seal may be
granted, notice must be provided to the public and must ordinarily be docketed .

reasonably in advance of deciding the issue” to give the public an opportunity to object.

Stone, 855 F.2d at 181.

Even in the case of search warrants, where the requirement to conduct
proceedings “with dispatch to prevent destruction or removal of evidence” may
necessitate moving quickly and before the public can have an opportunity to raise
objections, the Fourth Circuit has still required advance public notice and “an opportunity
... to voice objections to the denial of access,” suggesting that such notice “can be given
by docketing the order sealing the documents.” Baltimore Sun, 886 F.2d at 65. Here, no
public docket sheet or docket entries are even available for the public to see that
something was filed under seal; indeed, even the now-unsealed Twitter Order is not in the
case file. That is impermissible. Stone, 855 F.2d at 181; see Hartford Courant Co. v.
Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004) (striking down Connecticut’s secret-docket
system, holding that, “[T]he ability of the public and press to attend civil and criminal
cases would be merely theoretical if the information provided by docket sheets were
inaccessible” and that “docket sheets provide a kind of index to judicial proceedings and
documents, and endow the public and press with the capacity to exercise their rights
guaranteed by the First Amendment”); United States v. Valenti, 987 F.2d 708,715 (11th
Cir. 1993) (invalidating use of a parallel sealed criminal docketing procedure, and
explaining that the maintenance of a public and a sealed docket is inconsistent with
affording the various interests of the public and the press meaningful access to criminal
proceedings”); In re Search Warrant, 855 F.2d at 575 (holding that sealing of district
court docket sheets was “improper” and requiring that entry of closure or sealing order be
noted on the public docket “absent extraordinary circumstances”). . .

Because the government does not have a compelling interest in keeping the sealed
documents under seal and because the government cannot demonstrate that any continued
interest it does possess heavily outweighs Movants’ and the public’s interest in access,
the documents should be unsealed and made publicly accessible.

CONCLUSION

For the foregoing reasons, Movants request that all documents relating to the
Twitter Order and any similar § 2703 orders to entities other than Twitter be unsealed.